V.K. Mehrotra, J. - (1.) On June 23, 1984, was published in the U.P. Gazette a notification dated June 21, 1984 under S. 4(1) of the Land Acquisition Act, it was in respect of a large number of plots situate in villages Sachendi and Bhantipur in Pargana and District Kanpur. In the opening part it recited that the land mentioned in the schedule appended to the Notification was "needed for a public purpose, namely, for the construction of 400 Kv. Sub -station ........ through the National Thermal Power Corporation Limited." In para 2, it was further said that "being of the opinion that the provisions of sub -sec. (1) of S. 17 of the said Act are applicable to the said land, inasmuch as, the said land which is arable is urgently required for the construction of 400 Kv. sub -station....... and that in view of the pressing urgency, it is as well necessary to eliminate the delay likely to be caused by an enquiry under S. 5 -A of the Act, the Governor is further pleased to direct under sub -sec. (4) of S. 17 of the said Act that the provisions of S. 5 -A of the said Act shall not apply......" This was followed by a notification dated July 3, 1984 under S. 6 of the Land Acquisition Act which was published in the U.P. Gazette dated July 7, 1985. In its opening part it said that in continuation of the Government notification dated June 21, 1984, under Ss. 4(1) and 17(4) of the Land Acquisition Act, ".......the Government is pleased to declare under S. 6 of the said Act, that he is satisfied that land mentioned in the schedule below is needed for a public purpose, namely....., and under S. 7 of the said Act to direct the Collector of Kanpur to take order for the acquisition of the said land. The amount of compensation to be awarded for the acquisition of the said land shall be paid partly out of the public revenue of the State." In para 2 of this notification, the recital is that, "the Governor being satisfied that the case is one of urgency is further pleased under sub -sec. (1) of S. 17 of the said Act to direct that the Collector of Kanpur though no award under S. 11 has been made, may, on the expiry of 15 days from the publication of the notice mentioned in sub -sec. (1) of S. 9, take possession of the land which is waste or arable mentioned in the schedule below for the said purpose." Sarvsri Kishan Narain, Vishnu Narain, Kailash Narain and Prem Narain sons of Lala Ram Narain Garg approached this Court by presenting the present petition on Aug. 21, 1984. They claimed to be owners in possession of a number of plots detailed in para 1 of the writ petition situate in village Sachendi. They assailed the notifications and sought their quashing and also prayed that a mandamus may issue to the respondents, namely, the State of U.P. the Special Land Acquisition Officer, Kanpur and the National Thermal Power Corporation of India not to acquire the land of the petitioners and not to interfere with their possession over it. According to the petitioners, the Thermal Power Corporation had approached them for parting with the land for the purpose of construction of the sub -station. These negotiations were held in the year 1982 but the petitioners refused to do so. Thereafter, these notifications were got issued. The land was neither waste nor arable. There was no urgency either so as to enable the Governor to dispense with the provisions of S. 5 -A of the Land Acquisition Act and, thus, deprive them of an opportunity to object to the land being acquired. They have also said that the acquisition was for a Company within the meaning of that term as defined in the Land Acquisition Act and compliance with Part VII of that Act was absolutely necessary. The land was not suitable for construction of a sub -station. The petitioners had pointed out to the Corporation land in the vicinity which was more suitable for the purpose. It has also been said that on an application made in that behalf, the Additional Collector, Kanpur passed an order on June 30, 1960 granting a declaration under S. 143 of the U.P. Zamindari Abolition and Land Reforms Act at the appellate stage, reversing the decision of the Sub -Divisional Officer to the contrary, and that in proceedings under the U.P. Imposition of Ceiling on Land Holdings Act, the declaration was given effect to. The Governor was not entitled to ignore this fact and treat the land as arable as was done by him in the Notification under Ss. 4(1) and 6(1) of the Act nor could the land be treated to be waste land in the circumstances of the case.
(2.) The State of U.P. and the Special Land Acquisition Officer as well as the National Thermal Power Corporation placed their version in the form of counter -affidavits and rejoinders thereto were filed by the petitioners. Since the petitioners had not been formally admitted to further hearing before the exchange of these affidavits, the petitioners as well as the aforesaid three respondents prayed through their counsel that the matter be disposed of finally at this stage itself. On this request we have heard the counsel for the parties at some length and are proceeding to dispose of the petition finally in terms of R. 2 of Chapter XXII of the Rules of Court.
(3.) Sri R.C. Srivastava, Senior Advocate has appeared before us on behalf of the petitioners Kishan Narain and his brothers. The sole submission made by him was that the provisions of S. 17 were not attracted in the case so that the notification under S. 6(1) without opportunity of filing an objection and an enquiry under S. 5 -A was invalid. He urged that the acquisition of the land in question being for a public purpose, as recited in the two notifications, the exclusion of the enquiry under S. 5 -A could only be made in respect of land which was arable, as it was the case of the State of U.P. that the land was arable by saying so in the notification under S. 4(1). Arable, according to Sri Srivastava, could only be that 'land' which was used for purposes connected with agriculture, horticulture or animal husbandry. The declaration under S. 143 of the U.P. Zamindari Abolition Act made in the year 1960, which was duly recognised even in proceedings under the U.P. Imposition of Ceiling on Land Holdings Act, made it clear that the land could not be used for these purposes. The exclusion of proceedings under S. 5 -A of the Land Acquisition Act by invoking the provisions of S. 17(1) and (4) could not be resorted to in these circumstances. The submission was expanded by saying that after the declaration was made, the plots in question ceased to be land. They could not, then, be treated as arable land for purposes of S. 17(1). Our attention was invited to some decisions of this Court. First of these was by a Division Bench in Mewa v/s. Baldeo, : 1966 All WR (HC) 597 : (AIR 1967 All 358). In that case, while dealing with the plea whether a suit for cancellation of a document along with relief of possession would be before a Civil Court or before the Revenue Court only by virtue of S. 331 of U.P. Zamindari Abolition and Land Reforms Act, the Bench referred to the definition of land as contained in S. 3(14) of that Act and observed (in para 14 of the report), inter aha, that "there is no provision now for land automatically ceasing to be "land" if it is covered by buildings. On the contrary, an elaborate provision has been made in S. 143 onwards whereby land ceased to be land only after a declaration has been made to that effect by the Collector and........................ Under the U.P.Z.A. and L.R. Act, therefore, land remains land until that declaration is given.............." It is obvious that the Bench was examining the question only with reference to the definition of land for purposes of the U.P.Z.A. and L.R. Act. The next decision was rendered in Alauddin v/s. Hamid Khan, : 1971 RD 160 : (AIR 1971 All 348) where C.S.P. Singh, J. observed (in para 8 of the Report) that" ........till such time that a Bhumidhar does not get the requisite declaration he continues to be governed by the provisions of the U.P.Z.A. and L.R. Act irrespective of the fact as to whether he uses his land for purposes connected with agriculture, horticulture etc. or not. The case involved, as one of the questions, the question of jurisdiction of the Civil Court qua the Revenue Court. The last is a recent decision of this Court in Pratap Rai v/s. Board of Revenue,, 1980 All LJ 846, to which we shall advert a little later.;